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Mawaji Ramji and ors. Vs. Premji Kumbhabhai Chanda - Court Judgment

LegalCrystal Citation
SubjectContract
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 67 of 1963
Judge
Reported inAIR1967Ori158
ActsContract Act, 1872 - Sections 25(3) and 43
AppellantMawaji Ramji and ors.
RespondentPremji Kumbhabhai Chanda
Appellant AdvocateR.N. Misra and ;R.C. Patnaik, Advs.
Respondent AdvocateD. Mohanty and ;B. Patnaik, Advs.
DispositionAppeal dismissed
Cases ReferredJudge (Chandra Bhan v. Misrimal) The
Excerpt:
.....mr. if that is so nothing prevented the deceased who was a well known business man to have put the dates on the handnote on the date of despatch on 9-8-1957 it is difficult to imagine that the deceased would send a handnote without dating it. though under ex 1 there was a single promisor after the inheritance of the liabilities the heirs become joint promisors under ex 1 by virtue of inheritance when succession opens section 43 applies with full force there is no logic in confining the applicability of section 43 only to the stage of actual execution of the contract air 1917 cal 829 referred to in air 1957 andh, pra 688 is no longer good law on account of difference of opinion in the calcutta high court, the matter was examined in air 1925 cal 1050 (fb) kailash chandra v. the majority..........in possession of the estate of the deceased. the learned subordinate judge decreed the plaintiff's suit defendants are the appellants. 3. plaintiff came forward with an untrue story that ex. 1 was a renewal of a pro-note executed on 9-8-1954 for rs. 5,000/- paid in cash the finding of the learned subordinate judge is that the original loan to the tune of rs. 5,000/- was advanced on 9-7-1951 and the handnote of 1954 which is not exhibited in this case was executed one or two days before 9-7-1954 and that ex. 1 was renewed on 9-8-1957 after the 1954 promissory note had been barred by time. this finding is not assailed by mr. mohanty.this does not however, affect the plaintiff's case under section 25(3) of the contract act, an agreement made without consideration but in writing and signed.....
Judgment:

Misra, J.

1. Plaintiff's suit is for recovery of Rs. 6,800 with pendente lite and future interest on the basis of a promissory note (Ex. 1) dated 9-8 1957 for Rs. 5,000/- executed by deceased Ramji Haridas (hereinafter to be referred to as the deceased) Defendants Nos. 1 and 2 are the sons Defendant No. 3 is the widow and defendant No. 4 is the son's son of the deceased. In the plaint, a bald case was advanced that the defendants as heirs and successors of the deceased are in possession of vast properties left by him and did not pay up the dues despite repeated demands The cause of action was alleged to have arisen on 9-8-1954 when the loan was advanced and on 9-8-1957 when Ex 1 was renewed. At the evidence stage plaintiff advanced the story that in his presence at Jatni Ex. 1 was executed and the deceased put the dates thereon.

The averments in the written statement are of a general nature. Though pleas were taken that the suit was barred by limitation and was defective for non-joinder of parties, it did not indicate the facts on the basis of which such pleas were advanced. There was no denial of the assertion in para 3 of the plaint that the defendants were in possession of the properties of the deceased as heirs and successors. The execution of the pronote by the deceased was not denied.

2. The learned Trial Court recorded the following findings:--

(a) The original loan was advanced on 9-7-1951. Plaintiff admitted in his evidence that the handnote of 1954 was executed one or two days before 1954. Ex 1 was renewed on 9-8-1957 and by then the handnote of 1954 was barred by time.

(b) The story advanced by the plaintiff that Ex 1 was executed in the presence of P.Ws 1 and 2 at Jatni by the deceased who put the dates '9-8-1957' thereon is not acceptable.

(c) From other evidence, it however appears that Ex. 1 was executed by the deceased and he put the dates '9-8-1957'. The suit having been filed on 9-8-1960 is not barred by limitation

(d) Admittedly, the daughters of the deceased have not been made parties to the suit. The suit is however, maintainable as defendants are in possession of the estate of the deceased.

The learned Subordinate Judge decreed the plaintiff's suit Defendants are the appellants.

3. Plaintiff came forward with an untrue story that Ex. 1 was a renewal of a pro-note executed on 9-8-1954 for Rs. 5,000/- paid in cash The finding of the learned Subordinate Judge is that the original loan to the tune of Rs. 5,000/- was advanced on 9-7-1951 and the handnote of 1954 which is not exhibited in this case was executed one or two days before 9-7-1954 and that Ex. 1 was renewed on 9-8-1957 after the 1954 promissory note had been barred by time. This finding is not assailed by Mr. Mohanty.

This does not however, affect the plaintiff's case Under Section 25(3) of the Contract Act, an agreement made without consideration but in writing and signed by the person to be charged therewith to pay wholly a debt of which the creditor might have enforced payment but for the law for the limitation of suits is a contract. Thus Ex. 1 though renewed after the expiry of the period of limitation of the previous promissory note in 1954 is valid and enforceable in law.

4. It is the common case of the parties that Ex 1 was executed by the deceased. Dispute centres round the Question whether the two dates '9-8-1957' one at the top and the other below, the signature of the deceased were put by him or have been subsequently put in by the plaintiff to avoid limitation.

5. Mr Mohanty does not dispute the finding of the trial court that Ex. 1 was not executed on 9-8-1957 at Jathi in the presence of P.Ws. 1 and 2. He, however, argues that the dates '9-8-1957' on Ex. 1 shall be presumed to be on the promissory note on that date unless the contrary is proved and that defendants have failed to establish by satisfactory evidence that those dates were not on the promissory note on the date of execution.

This contention requires careful examination.

6. Section 118(b) of the Negotiable Instruments Act, 1881 (Act XXVI of 1881) runs thus:--

'118. Until the contrary is proved, the following presumptions shall be made:

(a) * * * * (b) That every negotiable instrument bearing a date was made or drawn on such date.'

Ex. 1 bears three dates At the top, there are two dates 9-8-1957/26-7-1957. At the bottom, there is another date '9-8-1957' below the signature of Ramji Haridas. Admittedly, the date '26-7-1957' was not put on the document by Ramji Haridas It was put at Rajenanda-gaon by the plaintiff when he sent it to the deceased for putting his signature and date The only question for consideration is whether the two dates '9-8-1957' appearing on the face of Ex. 1 were put on the handnote on 9-8-1957 In view of the presumption under Section 118(b) the onus is on the defendants to establish that it was not put on the handnote on that date. To prove the contrary defendants have placed reliance on the evidence of defendant No 2 (D.W 1) and Exs. 2/a dated 6-8-1957 and 2/b dated 9-8-1957 The evidence of D.W 1 throws no light on the question He admits in cross-examination thus:

'I cannot say if I was present with my father on 9-8-1957 In the day Ex. 1 was filled up, it was sent by registered post On looking at Ex. 1 I cannot say on which date my father executed the handnote. I cannot say if there is any other paper to show on which date Ex. 1 was executed or sent to plaintiff after execution. Ex. 1 was sent back by registered post. I could not trace out the registration receipt or acknowledgment.' D.W 1 has thus no personal knowledge and is not in a position to assert that the date '9-8-1957' was not put on the handnote by Ramji Haridas. The fact that the ink of the signature of Ramji Haridas and of these two dates are slightly different is not of much consequence Ramji Haridas is dead. It is difficult to guess as to why the ink slightly differed. He was the only person having special means of knowledge of that fact

Ex 2/a is a letter addressed by Ramji Haridas to the plaintiff Therein, it is stated that Ramji Haridas had executed the handnote in accordance with the direction of the plain-tiff and desired to send the handnote and the money towards interest by a registered insured parcel but he could not do it due to strike in postal service and that he would send the handnote within a day or two if the strike ceased. On the basis of this document, Mr. Misra argues that the handnote must have been executed on or before 6-8-1957 and it could not bear the date '9-8-1957' The argument cannot be said to be wholly without force. One cannot however, presume that the statement made by the deceased in Ex. 2/a was true. There are some documents on record to indicate that plaintiff very often complained that the deceased was not true to his promises (see Exs D and G). If Mr. Misra's contention would be correct, then the handnote would have borne some date on or before 6-8-1957. The handnote (Ex 1) however bears no such date. Alternatively all that could be inferred from the letter, if it is true, is that Ramji Haridas executed the promissory note on or before 6th August but had kept it undated when he could not despatch it due to postal strike. If that would be the inference, there is nothing wrong for the deceased to put the date '9-8-1957' later when he dispatched it after the cessation of the postal strike This is, however, on the assumption that the contents of Ex 2/a were true On the other hand, Ex. 2/b written by the deceased to the plaintiff on 9-8-1957 shows that he executed Ex. 1 on 9-8-1957 Ex 2/b bears the date '9-8-1957' It is not disputed that Ex 1 was sent with Ex 2/b in one registered cover. The crucial sentence in Ex 2/b is to the effect.

'After signing that (the handnote) I am sending it to you today.'

Mr Misra argues that the word 'today' refers to or qualifies sending' In other words, he argues that Ex 1 was merely despatched on 9-8-1957 though it had been previously executed without any date being put thereon As I have already said even if the recitals of Ex. 2/a are accepted as representing the truth, the inference would be that by then only the hand-note was executed, but it is hot dated. If that is so nothing prevented the deceased who was a well known business man to have put the dates on the handnote on the date of despatch on 9-8-1957 It is difficult to imagine that the deceased would send a handnote without dating it. Taking Exs 2/a and 2/b together, the reasonable inference appears to be that the two dates '9-8-1957' on the handnote were put in on that very date Doubtless, plaintiff came with a false story that Ex 1 was executed in the presence of P Ws 1 and 2 at Jatni, but the falsity of the positive case advanced by the plaintiff would not prove the truth of the defence version

To sum up the presumption of law that Ex. 1 bears a date which was made on that date has not been rebutted by any satisfactory evidence for the defence that it was executed earlier or that a handnote had been sent without any date being affixed thereto. The learned Trial Court was right in holding that the suit was not barred by limitation.

7. Mr Misra next contended that on the admitted position that the daughters of the deceased were not made parties, the suit is liable to be dismissed as the liability of the heirs of the deceased was joint and indivisible and the daughters were necessary Parties to the suit.

It is to be noted that though in the written statement there was a general plea of non-joinder no specific facts were averred. Reliance is placed by Mr. Misra on AIR 1957 Andh Pra 688. V Sooravya v. Kateeza Begum This decision cannot be accepted as authority in support of the contention that Section 43 of the Contract Act has no application to coheirs. Their Lordships said :--

'It might be observed that there is some difference of opinion in the Calcutta High Court itself on this point and were it necessary to do so we would have to examine the case law at some length.'

This decision did not therefore decide the point and cannot serve as an authority

8. Section 43 of the Contract Act so far as relevant runs thus:

'43 When two or more persons made a joint promise the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the promise. Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise unless a contrary intention appears from the contract'

This section in terms applies to a case of joint promise by two or more persons Ex t was executed by the deceased alone and there were no joint promisors After the death' of the deceased, his rights and liabilities were inherited by a number of heirs, some of whom are parties to the suit The heirs constitute tenants-in-common in respect of those rights and liabilities. They cannot inherit the rights without inheriting the liabilities Rights and liabilities go together The responsibility of the heirs in discharging the liability is not personal, but is limited to the properties inherited. Though under Ex 1 there was a single promisor after the inheritance of the liabilities the heirs become joint promisors under Ex 1 by virtue of inheritance When succession opens Section 43 applies with full force There is no logic in confining the applicability of Section 43 only to the stage of actual execution of the contract AIR 1917 Cal 829 referred to in AIR 1957 Andh, Pra 688 is no longer good law On account of difference of opinion in the Calcutta High Court, the matter was examined in AIR 1925 Cal 1050 (FB) Kailash Chandra v. Brojendra The short facts in that case were that plaintiff was entitled to Re /4/ share of taluq under which there was a tenure which formerly belonged to one Gour Sundar Singh and which by successive devolutions and assignments had come into possession of about twenty persons Plaintiff had sued for his share of the rent against some of the persons who were in possession during the period in suit alone with others who had not been made parties It was contended before their Lordships that the suit was not maintainable as the other defendants had not been made parties This was negatived. The majority held that a tenant-in-cotnmon is entitled to possession of every part of the estate and there is privity of estate between him and the landlord The law imposed a liability for payment of rent by reason of privity of estate and any one of such tenants may be sued for the entire rent due to the landlord This conclusion was reached both under Section 43 of the Contract Act which applied to express as well as implied promises and under the general law based on privity of estate. The principle enunciated in the Full Bench decision has not been subsequently departed from 1 am inclined to accept this decision as laying down the correct law The identical principle applies to the case of a recovery of loan by a creditor from the heirs who by operation of law become joint promisors after the death of the single promisor. The same view has been taken in AIR 1955 Rai 11 by a learned single Judge (Chandra Bhan v. Misrimal) The facts in that case are similar to the facts of this case His Lordship put the matter pithily thus:

'There appears to me to be no sound reason why the principle of this section (Section 43) should be held to be inapplicable to the case of heirs also who have jointly succeeded to the liability of their deceased ancestor.'

On the application of Section 43 of the Contract Act I am clearly of the opinion that in the absence of an express agreement to the contrary it is open to the plaintiff to compel performance of the whole of the promise by the defendants though the sisters are not parties to the suit It need hardly be stated that under the very section it would be open to the defendants to compel the sisters for contribution

9. Thus both the contentions fail In the result the appeal fails and is dismissed with costs

Das, J.

10. I agree


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